United States v. Warring, 22886.
| Decision Date | 01 June 1954 |
| Docket Number | No. 22886.,22886. |
| Citation | 121 F. Supp. 546 |
| Parties | UNITED STATES v. WARRING. |
| Court | U.S. District Court — District of Maryland |
George Cochran Doub, U. S. Atty., Herbert H. Hubbard, Asst. U. S. Atty., Baltimore, Md., for plaintiff.
G. C. A. Anderson, James S. Morrow, Jr., Anderson, Barnes & Coe, Baltimore, Md., for defendant.
On February 16, 1954 the defendant in this case was indicted by the Grand Jury for the District of Maryland for an alleged attempt to evade the payment of personal federal income taxes for the calendar year 1947, the charge being that on or about the 15th day of March 1948 at Baltimore, in the State and District of Maryland, the defendant, late of Washington, D. C., did wilfully and knowingly attempt to defeat a large part of the income tax due and owing for the calendar year 1947 by filing and causing to be filed with the Collector of Internal Revenue for the collection district of Maryland at Baltimore, a false and fraudulent income tax return, stating that his net income for the year was $25,559.96, and that the tax due thereon was $12,005.31, whereas as he then and there well knew his net income for the year was $147,967.12, upon which the tax due was $104,087.45. The defendant has now filed a motion based on Rule 21(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., that the case be transferred from this judicial district to the United States District Court for the District of Columbia. This motion is opposed by the United States Attorney.
Rule 21(b) reads as follows: To warrant the transfer as requested it is clear that defendant must establish (1) that the offense was committed in two or more judicial districts; and (2) that it will be in the interest of justice to make the transfer. After hearing the arguments of counsel and consideration of their respective briefs, I have concluded that the motion should be denied for the following reasons.
On February 24, 1954 the defendant filed a motion to dismiss the indictment herein on the ground that this court did not have jurisdiction to try the case. The motion was overruled. On March 10 the defendant filed a motion for a bill of particulars before arraignment. After hearing, this motion was also overruled. Counsel for the defendant stated at the hearing that the real purpose of the motion for particulars was to put upon the record facts intended to be in support of the motion to transfer. There being in my opinion no sufficient reason for granting the motion for particulars for the purpose of enabling the defendant to prepare for pleading or for trial of the case, after hearing, the motion was denied. Thereafter on April 29 the defendant, without waiving his contention that this court had no jurisdiction of the case, filed a motion to transfer the case to the District of Columbia. In the motion the defendant has recited that he was born in the District of Columbia and has resided there continually since his birth 48 years ago, and is now a resident of the District of Columbia; that his books and records are there situated and that all of his witnesses reside in or near the District of Columbia; that his federal income tax return for the year 1947 was prepared for him by a person residing in the District of Columbia and that some or many of the witnesses for the government also reside there or near there; and that his income tax return for the year 1947 was "physically" filed in the District of Columbia and that the tax was paid there.
It is apparent that the defendant's fundamental contention is that this court does not have jurisdiction of the case. The motion to transfer is made without prejudice to this fundamental contention and appears to be in the nature of an alternative. It is well settled by the decisions of the Court of Appeals of this Fourth Circuit that under the applicable federal statutes this court does have jurisdiction of this case even though the defendant is and has continuously been residing in the District of Columbia and did "physically file" his income tax return with a local or branch office of the Collector of Internal Revenue for Maryland. Bowles v. United States, 4 Cir., 1934, 73 F.2d 772; Bell v. United States, 4 Cir., 1951, 185 F.2d 302; Wampler v. Snyder, 1933, 62 App.D.C. 215, 66 F.2d 195. It has been the uniform practice of the government for more than 20 years, to the personal knowledge of the Judges of this court and indeed so far as I have discovered since 1913, to prosecute residents of the District of Columbia for alleged personal individual income tax violations under title 26 U.S.C.A. § 145(b) by indictment and trial in this court. A contention to the contrary was made and overruled by this court and by the Fourth Circuit Court of Appeals in the Bowles case, supra. Since that decision I do not recall that a similar contention has been advanced on behalf of any defendant until in the instant case.
In considering the federal revenue statutes with regard to the place of filing individual income tax returns, it is necessary to bear in mind the difference between the "collection" district and the "judicial" district. 26 U.S.C.A. § 53(b)(1) provides:
The word "district" here quoted refers to the collection district and not to the judicial district. 26 U.S.C.A. § 3650 (enacted in 1874) provided that the President should designate geographical areas for separate revenue collection districts up to 65 in number. In 1883 a Presidential Order, by President Arthur, designated the District of Columbia to be a part of the revenue collection district for which the Collector was at Baltimore, Maryland. Since then, as above indicated, it has been the uniform practice under the statutory requirement that personal income tax returns by residents of the District of Columbia must be filed with the Collector (now Director) of Internal Revenue at Baltimore, Maryland. For some years past, for the greater personal convenience of residents of the District of Columbia, the Collector has maintained a representative at Washington, D. C., where income tax returns can be handed in and are then transmitted to the Collector at Baltimore, and, as appeared at the hearing in this case, the returns when so received at Baltimore are then for the first time stamped as filed. For further convenience of Washington residents the Collector's representative in Washington will receive checks in payment of taxes and forward the checks to the Collector at Baltimore; and if cash is paid a receipt will be given for the payment and the cash deposited to the credit of the United States for the account of the individual taxpayer. These same conditions existed at the time of the decision of the Bowles case and were discussed in the opinion in that case.
To authorize the transfer under the rule the defendant must first satisfy the court that "it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district". This requires a consideration of what the indictment alleges, and it is important to note that the indictment clearly and explicitly charges that the offense was committed only in the ...
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